A 78-year‐old Iowa man, Henry Rayhons, has been charged with third-‐degree felony sexual abuse for having sex with his wife, who had severe Alzheimer’s, in her nursing home on May 23, 2014. Mrs. Rayhons died in August. The case raises questions about the capacity to consent in cases of severe dementia, an issue that is not limited to sexual relations. It comes up also in cases where patients initially resist food and water, but can be coaxed to eat. Does opening one’s mouth and ultimately swallowing indicate consent?
The importance of consent in sexual relations is now well recognized, although it hasn’t always been. Under common law, laws against rape were not considered applicable in marriage. The movement to make spousal rape a crime began only in the mid-‐1970s. By 1993, it was a crime in all 50 states.
However, this case is clearly not a case of spousal rape. No one suggests that Mrs. Rayhons resisted sexual contact with her husband, nor were there any signs of abuse. Indeed, by all accounts, theirs was a loving and affectionate relationship, and Mrs. Rayhons was always pleased to see her husband. That pleasure was undoubtedly less visible in the final stages of her dementia, but even then there were minimal signs that she enjoyed this contact, and none that she did not.
Without any signs of abuse, what was the basis for the arrest? Apparently, Mrs. Rayhons’s daughter was concerned that Mr. Rayhons was engaging in “inappropriate sexual contact” with her mother. This led a social worker to ask the nursing home’s doctor whether, given Mrs.
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